Appellate courts can independently assess evidence, with the burden of proof on the appellant to show properties are proceeds of unlawful activities under AMLATFPUAA.

Lee Heng Cheong JCA:

Introduction

[1] The Appellant/Applicant had filed a Notice of Motion dated 13 December 2019 vide the Criminal Application No WA-44-322-12/2019 ("the said Notice of Motion") in the High Court against the 1st Respondent (Mokbul Hossain), the 2nd Respondent (Mokbul Enterprise Sdn Bhd) in which the 1st Respondent owned 40% of the total issued capital as well as the 3rd Respondent (Md Mithu) for the forfeiture of the following monies and properties as stated in the said Notice of Motion namely:

(a) Cash amounting to RM11,075.70 and any increase to it in Maybank Berhad Savings Account number 114013215864 belonging to the 1st Respondent at Maybank Berhad Kuala Lumpur branch which was seized on 13 March 2019;

(b) Cash amounting to RM5,852.81 and any increase thereto at in CIMB Bank Bhd Savings Fixed Account number 5000138186 belonging to the 1st Respondent at CIMB Bank Berhad Tunku Abdul Rahman branch, Kuala Lumpur which was seized on 13 March 2019;

(c) Cash amounting to RM517.90 and any increase to it in the CIMB Bank Berhad Savings Account number 7002338023 belonging to the 1st Respondent at CIMB Bank Berhad Jalan Tunku Abdul Rahman branch, Kuala Lumpur which was seized on 13 March 2019;

(d) Cash amounting to RM790.21 and any addition to it in CIMB Bank Berhad's Current Statement number 8000648847 belonging to the 2nd Respondent at CIMB Bank Berhad's Putra World Trade Center branch, Kuala Lumpur which was seized on 10 April 2019;

(e) Honda HRV motor vehicle (A) with registration number WB3748R belonging to the 1st Respondent ("the Honda HRV") which was seized on 2 January 2019; and

(f) Property with title number GRN 76444/M1/26/221, Parcel No A518, A865, A866, Lot 20001, s 19, Kuala Lumpur City, Federal Territory owned by the 1st Respondent whose address is 26-3, Suasana Bukit Ceylon, Persiaran Raja Chulan, Bukit Bintang, Kuala Lumpur ("the said Apartment") belonging to the 1st Respondent which was seized on 13 March 2019.

(collectively "the said Properties").

[2] The Appellant/Applicant in the said Notice of Motion contended that the above 3 Respondents' said Properties were seized in relation to a criminal offence of smuggling migrants to Malaysia by obtaining professional work permits improperly by way of falsifying academic documents, education certificates and also work application documents under s 26A Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007 (Act 670) ("ATIPSOM 2007") which is listed under the Second Schedule of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 (Act 613) ("AMLATFPUAA 2001").

[3] The following pleadings are pertinent:

(a) The said Notice of Motion dated 13 December 2019;

(b) The Affidavit in Support of TPR Muhammad Shukri Hussain affirmed on 12 December 2019;

(c) The Affidavit in Support of Assistant Superintendent of Police Mohd Fitri Imran Mahadzir affirmed on 13 December 2019;

(d) The Affidavit in Support of Inspector Noor Azizah Che Mat affirmed on 13 December 2019;

(e) The Affidavit in Opposition of the 1st and 2nd Respondents affirmed by the 1st Respondent on 1 September 2020; and

(f) The Affidavit in Reply was filed by TPR Kee Shu Min affirmed on 14 September 2020 in response to the 1st Respondent's Reply Affidavit.

[4] The Appellant/Applicant further contended that they have successfully proven that the said Properties were proceeds of an unlawful activity relating to the commission of an offence under s 4(1) AMLATFPUAA 2001 and the Respondents have failed to prove otherwise.

[5] The Respondents in turn contended that the said Properties could not be traced back to the pr